Yu Wing-keung v. The Queen

CACC000249/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 249 OF 1981

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Coram: Bewley, J.

Date of Judgment: 22nd April, 1981

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JUDGMENT

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1. The appellant pleaded guilty to unlawful possession contrary to section 30 of the Summary Offences Ordinance, Cap. 228. He was sentenced to 1 month imprisonment, against which he now appeals.

2. A police party, late at night, observed the appellant putting some articles into the boot of his car. They were suspicious and, approaching the car, asked the appellant to open the boot. Their suspicious were confirmed when 3 bags containing a total of $5,767.90, plus some China Motor Bus Co. coupons were found. The appellant was questioned about the money, but his answers were vague and he was arrested.

3. The magistrate called for a probation officer's report, which proved to be wholly favourable to the appellant. He is a first offender aged 33, in steady employment as a van driver, who causes no trouble at home and makes regular contributions to his family. He is unmarried. There is before the Court a letter from his employer, who is satisfied with his honesty and diigence and who is willing to retain his services.

4. It appears that the appellant was in need of money for Chinese New Year and was tempted to commit the offence. It was clearly out of character.

5. The magistrate considered fining the appellant or binding him over, but decided that both the circumstances of the offence and the amount of money involved required a custodial sentence. I have sympathy with this approach and, indeed, my initial reaction was that 1 month was a proper sentence.

6. It is, however, unusual for a first offender to come before the courts charged with being in unlawful possession of so much money. This provision is used mostly to secure the conviction of recidivists found in possession of small items of property, of little value, which the police suspect, but cannot prove, to have been stolen.

7. A first offender, charged with an offence of dishonesty, for whom there is something to be said by way of mitigation, does not, unless the amount is very large, normally go to prison. A fortiori where the offence is one punishable by a maximum of 3 months.

8. The same view was taken by Briggs J. in Chan Hoi and another v. R.,⁽¹⁾ when he substituted a fine for a sentence of two months' imprisonment. In that case the appellant had been acquitted of stealing goods worth over $11,000, but convicted of unlawful possession of the same goods.

9. I think it is unlikely that the appellant will offend again. The appeal is allowed and a fine of $500 substituted for the sentence imposed by the magistrate.

Representation:

Mr. Cheng Huan (Ip, Ku & Stoppa) for appellant

Miss Crebbin, C.C., for respondent

(1) (1966) H.K.L.R. 42.